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I thought you might be interested in reading the cert petition in PT Pertamina v. Karaha Bodas Co. out of the Second Circuit. One of the questions presented is "whether a federal district court has 'ancillary' subject matter jurisdiction, after a judgment for money damages has been fully satisfied, to issue an anti-suit injunction barring foreign litigation." Click the link to at the bottom of this post to read the entire petition. Thanks to Dustin Benham at Carrington & Coleman for the heads up.--Counseller

Not long ago, a California district court denied as untimely a motion for about a million dollars worth of attorneys' fees. The prevailing party had 14 days from entry of judgment to file its motion. The deadline was 4pm on the 14th day. On the 14th day, at 3:14 pm, the lawyer for TAIS, the prevailing party, delivered the motion to the courier service. The courier got stuck in traffic and missed the deadline (reportedly by one minute). The court denied the motion as untimely. The court reasoned, in part:

[E]ven a good faith mistake that does not result in prejudice to the other side is not a sufficient reason to enlarge the time period for requesting fees, absent some other evidence of 'compelling circumstances.'

[T]he reason for the delay was entirely within the TAIS' control and TAIS has not offered a good reason for the delay. Given that the Ninth Circuit has held that a good faith misunderstanding of local rules is not sufficient to rise to the standard of excusable neglect, the entirely foreseeable obstacle of traffic in Southern California in the late afternoon cannot justify an enlargement of time. ... Because [the lawyer] made a conscious decision to wait until the final hour to file his motion, he assumed the risk that ... his risk would run out.

This morning, the Court decided John R. Sand & Gravel Co. v. U.S. and, relying principally on stare decisis, held that the Court of Appeals properly raised and applied the Tucker Act’s six-year limitations period on its own motion and despite an earlier concession by the United States that the claim was timely.

There are many good arguments against the Court’s result, and the opinion is hardly satisfying. In particular, its heavy reliance on stare decisis is a disappointing sidestep of a more nuanced and thoughtful approach to the difficult characterization issue before it.

But let me point to a few bright spots that I see in the Court’s reasoning.

First, the Court finally seems cognizant of the difficult nature and nuanced features of jurisdictional characterization inquiries. The question presented by the Petitioner was, in a nutshell, whether the Tucker Act’s limitations period was “jurisdictional.” Nowhere does the Court answer that question. Notably, its opinion reframes the question presented into the following nonjurisdictional issue: “whether a court must raise on its own the timeliness of a lawsuit filed in the Court of Federal Claims, despite the Government’s waiver of the issue.” (This phrasing closely tracks the Government’s phrasing of the question presented.) The Court also backtracks away from the “jurisdictional” ruling of Bowles v. Russell, which almost certainly was incorrect (even if the ultimate result of Bowles was not).

Second, and relatedly, the Court has signaled its willingness to look to middle paths – that a rule might be nonjurisdictional yet nevertheless have jurisdictional features such as being unsusceptible to the kind of waiver that took place. The Court framed the issue in this case (and, retrospectively, in cases like Bowles) as whether the limits are “more absolute” rather than whether they are “jurisdictional.” Implicitly, the Court is suggesting that it need not reach the question of whether the rule is jurisdictional or not because even nonjurisdictional rules might nevertheless have some jurisdictional attributes, such as a judicial obligation to raise and police them sua sponte.

Third, it decides the case on the very narrow grounds presented by the facts, rather than the broader jurisdictional grounds. Thus, it avoids the problem that Bowles fell into – overdeciding the case. Had it held the limitation to be jurisdictional, the Court would have ended up deciding a host of other questions never presented (may the rule be forfeited, is it susceptible to equitable excuses, etc.).

Ultimately, the Court fails to truly wrestle with even the difficult question of whether the limitations period is “more absolute” or not and what that moniker might mean in particular cases (jurisdiction-lite?). And, it remains to be seen whether “more absolute” is a broad category encompassing a variety of nonjurisdictional rules having jurisdictional-like features or is just a euphemism for “jurisdictional.” But, in the spirit of optimism that accompanies those last few days before classes begin, I’ll give the Court three muted cheers for being more careful than it was in Bowles.

The statute of limitations in the Tucker Act, 28 U.S.C. §2501, provides: “Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” The question presented is:Whether the statute of limitations in the Tucker Act limits the subject matter jurisdiction of the Court of Federal Claims.

The Supreme Court, in the only ruling on the merits
Tuesday, decided that the U.S. Court of Appeals for the Federal Circuit
must always consider whether cases making claims against thefederal
government were filed on time, even if the federal government has
waived that issue. The 7-2 ruling came in the case of John R. Sand
& Gravel v. U.S. (06-1164).